Med Mal Motion to Dismiss Duty
 Hospital granted summary judgment of claim that it failed to timely commence outpatient physical and occupational therapy because carrier delayed approving treatment. A medical provider has no duty to accept a patient for treatment generally, and specifically where there is no payment. Both the Emergency Medical Treatment and Active Labor Act and Public Health Law §2805-b only apply to an immediate need for hospitalization not after hospitalization care as alleged by plaintiff. Public Health Law §2805-b has no private cause of action for monetary damages. Espinosa v Montefiore Med. Ctr.
|
Premises Liab Motion to Dismiss Statute of Limitations Estate
 Original action dismissed 1-year after accident when plaintiff learned abutting landowners had died years earlier. Subsequent action started 1-year after administratrix appointed, more than a year after statute of limitations, dismissed as plaintiff was aware of landowners’ death 2-years before statute of limitations and did not petition Surrogate Court for appointment of public administrator under SCPA §1002. Aurilia v Carbonara
|
Motion to Dismiss Notice of Claim
Plaintiff met heightened standard of showing “such relevant proof as a reasonable mind may accept as adequate to support a” question of fact on negligence in opposition to engineers’ pre-answer motion to dismiss under CPLR §3211(h) with pre-action deposition testimony of defendants’ representative that railings are used on piers to prevent pedestrians from falling into the water, and main pier where plaintiff’s decedent fell into water was open to pedestrians in an area where boats could not moor. Plaintiff not required to prove claim by a preponderance of the evidence on motion. Golby v N & P Engrs. & Land Surveyor, PLLC
Comment: A reminder of the Notice of Claim requirement and pre-action discovery for suits against licensed architects, engineers, land surveyors, or landscape architects or their practices under CPLR §214-d and the heightened standard to oppose a motion for summary judgment under CPLR §3211(h). |
Med Mal Renew Reasonable Excuse
Plaintiff’s motion to renew opposition to PA’s and emergency medical service company’s motion for summary judgment based on affidavit of a physician’s assistant not retained or provided in original motion and a further affidavit of an orthopedist denied. A court may consider facts known but not included in original motion but only on a showing of reasonable justification for not initially including them. Retention of a new expert is not a proper basis for renewal and plaintiff failed to provide reasonable justification for not including facts in orthopedist’s second affidavit. In any event, submissions would not have changed the result. Feurderer v Vassar Bros. Med. Ctr.
|
Workers Comp Grave Injury Indemnity
Third-party employer denied summary judgment of common law and contractual indemnity and contribution claims where defendant submitted Social Security Administration decision finding plaintiff was “unable to perform any ‘past relevant work’ and that there are no jobs in the national economy that he can perform,” at least in part because of brain injuries from accident raising a question of grave injury. Goundan v Pav-Lak Contr. Inc.
|
Attorney Fees
Suspended attorney entitled to quantum meruit fee based on qualitative value of services rendered before suspension regardless of whether there was a fee splitting agreement with attorney he referred case to, which is not binding but should be considered. Ragland v Molloy
|
MVA Set Aside Verdict Motion in Limine Reckless CPLR § 3101(d) Admissibility Jury Charge Preclusion Frye Materially Deviates
$12 million verdict set aside and new trial ordered on liability and damages where trial court truncated proof on whether salt spreader was public or private vehicle relevant to whether jury should be charged with reckless standard under VTL §1103 or negligence under VTL §1163 and erred in precluding accident reconstructionist after court’s in limine inquiry regarding scientific studies that were not relevant since accident reconstruction and reaction times are not novel theories subject to a Frye hearing. Reconstructionist’s proposed testimony not entirely speculative and anything beyond the CPLR §3101(d) should have been handled by limiting the testimony, not precluding it. Plaintiff failed to preserve inconsistent verdict argument for jury’s award of future damages for only 3-years, but $12 million award for 3-years materially deviated from reasonable compensation. Defendants’ medical expert was improperly barred from giving opinions on whether injuries were traumatic, surgeries necessary, and whether future surgery would be needed. Cabrera v Port Auth. of N.Y. & N.J.
|
Vacate Default Reasonable Excuse Amend BP
Plaintiff’s motion to vacate default and restore action twice dismissed under 22 NYCRR 202.27 for failure to go forward with trial denied where plaintiff failed to give reasonable excuse for not proceeding with trial. Motion to amend BP was denied and supplemental BP, in fact an amended BP, served after action was dismissed the second time was a nullity and did not provide a reasonable excuse for not going forward. Meritorious action issue moot absent reasonable excuse. Campbell v Dwyer
|
Med Mal Accepted Practice Causation Question of Fact Expert Aff
Physician denied summary judgment as medical record with no indication he was present during resuscitation efforts after infant was born with an Apgar score of 1 did not eliminate all questions of fact where he testified he could have been there and helped with resuscitation but had no memory of the events. Other doctor met burden for summary judgment by expert opinion that she did not depart from accepted practice by initially attempting resuscitation with positive pressure ventilation (PPV) but plaintiff’s expert’s opinion that attempt of PPV instead of intubating infant within 15-20 seconds of birth given Apgar of 1 was a departure and cause of brain injuries raised issues of fact. E.K. v Tovar
|
Serious Injury ROM Preexisting Degenerative Causation Expert Aff
Plaintiff raised issue of fact on serious injury for cervical spine by radiologist report finding multiple bulging discs and treating doctor’s finding of limited ROM shortly after accident, four years later, and opinion it was causally related to accident. Plaintiff’s own medical records did not have evidence of pre-existing degenerative conditions noted by defendants’ radiologist, so plaintiff’s physicians did not have to address pre-existing degeneration. Plaintiff raised issue on shoulder injury by treating doctor’s findings of limited ROM shortly after the accident and four years later, surgery for a labral tear, and opinion it was causally related to accident. That plaintiff did not initially complain of shoulder but sought treatment within a month did not break causal connection but raised question of fact. Guzman v Cruz
|
MVA Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice NYC
Police report indicating “no damage” to petitioner’s car did not connect injuries to negligent conduct necessary to give actual notice to NYC. Plaintiff’s claim of prior attorney’s law office failure insufficient to give reasonable excuse for almost 1-year delay in seeking leave to serve late Notice of Claim and plaintiff failed to present evidence or argument that NYC was not prejudiced where delay prevented it from investigating and interviewing witnesses while facts were still fresh in their minds. Matter of Lugo v GNP Brokerage
|
MVA Pileup Set Aside Verdict Directed Verdict
Motion to set aside verdict based on insufficient evidence and for judgment as a matter of law by 2-defendants respectively found 5% and 25% at fault by jury denied where verdict could be reached on a valid line of reasoning and permissible inferences on liability and causation. Shoshari v Herrera
|
Labor Law §240 Question of Fact
Plaintiff’s submissions including his deposition testimony failed to establish that his fall from a scaffold while clearing debris from a fire on a roof occurred on the unit owned by the corporate defendant. Mere allegation in verified Complaint was insufficient to eliminate all questions of fact on this issue. Summary judgment for plaintiff denied. Martin v Hillside Enters., LLC
|
Premises Liab Slip/Trip Motion to Dismiss Statute of Limitations Notice Out of Possession Amend Complaint
Owners of property with restaurant where plaintiff tripped and fell in parking lot failed to show they were out of possession owners where ground lease gave them right to reenter and do anything to have premises comply with conditions of lease. On motion to dismiss based on documentary evidence defendants’ affidavits do not constitute documentary proof and ground lease failed to utterly refute plaintiff’s allegations. Motion to dismiss granted as to 2-owners who were served with amended Complaint adding them as parties after the statute of limitations as relation back doctrine did not apply absent proof they had notice of the original complaint served on a third owner before the statute of limitations. Third owner’s claim that original complaint was not sufficiently particular to give notice of the claim since it inaccurately identified the street name rejected as it was properly corrected with the amended Complaint without leave of court. Statute of limitations as to that owner timely on service of original Complaint. Pirozzi v Garvin
|
Labor Law §241 Industrial Code
Construction worker injured when he jumped off stopped truck to place traffic sign for construction work failed to establish industrial code § 23-9.7(e) requiring a seat while riding in a truck applies to exiting a truck that is stopped. Plaintiffs’ interpretation contradicts plain language of the code and would add to the regulation’s meaning. Summary judgment for defendants. Wetter v Northville Indus. Corp.
|
Dangerous Condition Notice Unknown Cause Open/Obvious
Dumpster company denied summary judgment where plaintiff injured when his foot got stuck in bent top rung while descending 3-rungs on side of dumpster as testimony and photographs submitted by defendant failed to make out prima facie case that rung was not a dangerous condition, that plaintiff was unable to identify cause of accident, and that condition was not visible and apparent and existed for sufficient time for defendant to repair. Rosales v Five Star Carting, Inc.
|
Premises Liab Duty Intervening Cause
Operator of Resorts World Casino in Queens granted summary judgment where plaintiff was sexually assaulted off-premises by a patron who along with another man bought her and her friend shots at the casino bar after which her memory became fragmented, she became intoxicated, and her and her friend left the bar with the two men. Casino’s duty limited solely to acts committed on its premises including its duty to control third persons on its premises where it could control their actions and was reasonably aware of the need to do so. Stenson v Genting N.Y., LLC
|
Premises Liab Slip/Trip 3rd Party Contractor Espinal
Maintenance company granted summary judgment on proof it did not launch instrumentality of harm under Espinal by waxing floor and plaintiff failed to raise an issue in opposition. ‘In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence.’ Union v Excel Commercial Maintenance
|
Premises Liab Duty Question of Fact
School denied summary judgment where infant pressed hand on glass which shattered where it failed to submit proof it was not required to install shatterproof glass. Kc v Half Hollow Hills Sch. Dist.
|
Prior Written Notice Slip/Trip Snow/Ice Admissibility
Town obligated by contract to clear snow from Village’s streets and Village granted summary judgment where plaintiff fell on accumulated snow in street on proof they did not receive prior written notice of snow condition as required by local codes. Affidavits of Town employees who searched records admissible even though not previously disclosed as they were not notice witnesses. Brower v County of Suffolk
|
Premises Liab Slip/Trip Unknown Cause Notice Last Inspection
Group home denied summary judgment where occupational therapy assistant slipped and fell on driveway as deposition testimony submitted by defendant raised question of whether numerous cracks in driveway caused plaintiff’s accident and general cleaning/inspection testimony establishing last inspection 7-weeks before accident and maintenance department inspections every month was insufficient to eliminate constructive notice issue of defendant’s notice within time to repair. Defendant failed to show defect was trivial. Croshier v New Horizons Resources, Inc.
|
Premises Liab Slip/Trip Create Condition Notice Last Inspection
Bodega failed to meet burden of showing it did not create a dangerous condition or have actual notice of one absent a specific affirmative showing and failed to show its cleaning/inspection activities on the day of the accident as its witness testified he was on vacation on that day. Ruiz v Stop 1 Gourmet Deli
|
Premises Liab Elevator Out of Possession Notice Unknown Cause NYC
NYC failed to submit evidence to establish it was out of possession owner with no contractual duty to maintain elevator in library where librarian tripped on mis-leveled staff elevator. NYC also failed to eliminate lack of constructive notice or that plaintiff could not identify cause of her fall. Muller v City of New York
|
Premises Liab Slip/Trip Notice Warnings
Ale house failed to meet burden of showing accident was not caused by its failure to correct the hazardous condition within a reasonable time after having notice. The presence of a nearby warning only satisfied duty to warn, not duty to maintain premises in a safe condition. Generoso v Miller
|
Premises Liab Construction Liab. Falling Object Premature Motion Discovery
Construction company met burden for summary judgment on proof it did not perform any work on the structure plaintiff described as a scaffold from which a plank fell and hit him but codefendant, NYCHA, showed discovery might lead to information necessary to oppose the motion. Johnson v New York City Hous. Auth.
|
Premises Liab Slip/Trip Sidewalk § 7-210 Question of Fact
Plaintiff raised issue of fact in opposition to 1-defendant’s showing of entitlement to summary judgment by lease provision requiring defendant to maintain sidewalk where plaintiff tripped on uneven brick pavers contradicting defendant’s representation that it had no contract obligating it to maintain sidewalk. Alfani v Rivercross Tenants Corp.
|
MVA Rear End Pileup
Limousine driver and company granted summary judgment on proof limousine carrying plaintiff was stopped when rear-ended. Claim by Plaintiff and rear most vehicle that limousine stopped short insufficient to raise issue of fact. Ross v JFC Intl., Inc.
|
Premises Liab Dangerous Condition Notice
Building granted summary judgment where plaintiff fell after being struck by automatic closing doors on proof that door activating system was replaced 2-months earlier, there were no complaints of malfunctions in that time, and daily inspections showed it operated in compliance with industry standards. Alkon v North Shore Towers Apts. Inc.
|
Pothole Law Prior Written Notice De Minimus
Yonkers granted summary judgment where infant tripped on recessed water valve in street while playing basketball as defect was trivial and surrounding circumstances did not create a tripping hazard or nuisance. Prior written notice issue lower court granted summary judgment on moot on finding of trivial defect. Acevedo v City of Yonkers
|
